Griffin v. United States of America

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
John R. Griffin, Jr.
v. 	Civil No. 18-cv-440-JL
United States
REPORT AND RECOMMENDATION
Before the court are:
• 	Plaintiff John R. Griffin, Jr.’s motion to amend (Doc.
No. 4) his complaint, to reduce the amount of damages
claimed to $74,000.00 and to remand the case to state
court;
• 	Griffin’s Motion to Challenge the Territorial
Jurisdiction of the Federal Tort Claims Act (“FTCA”)
(Doc. No. 17);
• 	Defendant United States’s motion to dismiss Griffin’s
FTCA claims for lack of subject matter jurisdiction
(Doc. No. 2); and
• 	Griffin’s motion for the return of his passport (Doc.
No. 7).
Griffin’s motions seeking a remand and relating to the coverage
of the FTCA (Doc. Nos. 4, 17) raise threshold questions. 	The
court, therefore, addresses those motions before turning to
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Griffin’s motion for return of his passport (Doc. No. 7) and
defendant’s motion to dismiss (Doc. No. 2).
Discussion
I. 	Motion to Amend Complaint and to Remand (Doc. No. 4)
Griffin seeks to reduce the amount of damages he claims to
an amount beneath the $75,000 amount-in-controversy requirement
for this court to exercise its jurisdiction over this case under
28 U.S.C. § 1332, and to thereby effect a remand of this case.
The problem with Griffin’s path to a remand, however, is that
removal jurisdiction here is not based on diversity of
citizenship. 	Rather, removal jurisdiction is based on the
identity of Griffin’s state court defendant (a federal agent),
see 28 U.S.C. § 1442(a)(1), and the Attorney General’s
certification that the agent was acting within the scope of his
federal employment, see 28 U.S.C. § 2679(d)(2).
Because the Attorney General issued the necessary
certification regarding the scope of employment and removed the
case from Superior Court on that basis, this court presently
lacks authority to remand this matter. 	See generally Osborn v.
Haley, 549 U.S. 225, 243 (2007) (citing 28 U.S.C. § 2679(d)(2)).
The district judge should therefore deny Griffin’s motion to
amend (Doc. No. 4).
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II. 	Motion to Challenge Territorial Jurisdiction (Doc. No. 17)
Contending that statutes passed by Congress generally do
not apply outside of federal territories and the District of
Columbia, Griffin argues that the FTCA does not apply to govern
his state tort claims asserted against Federal Bureau of
Investigation (“FBI”) Agent Mark Hastbacka. 	Griffin’s
contention about the territorial reach of federal statutes in
general, and the FTCA specifically, is incorrect.
As grounds for his argument, Griffin extracts a quote from
Caha v. United States, 152 U.S. 211 (1894) out of context. 	The
Caha Court, after describing an act of Congress outlawing
perjury as a criminal law of “universal application” within the
United States, then noted, in dicta cited by Griffin, that the
states, and not Congress, have police powers sufficient to enact
laws to preserve the peace and protect people and property. 	It
is an unremarkable observation, signifying nothing with respect
to the FTCA, that the states have police powers that Congress
generally lacks. 	Cf. Operation Rescue Nat’l v. United States,
975 F. Supp. 92, 109 (D. Mass. 1997), aff’d, 147 F.3d 68 (1st
Cir. 1998).
Griffin cites inapposite authority and specifically points
to language in United States v. Perez, No. CR-06-0001-MAG (MEJ),
2006 U.S. Dist. LEXIS 75086, at *4, 2006 WL 2850018, at *1 (N.D.
Cal. Oct. 4, 2006), which quotes Caha, in connection with a
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ruling concerning Congress’s power to pass laws governing
conduct at the Presidio, a federal enclave. 	In enacting the
FTCA, however, Congress did not rely on police powers or its
authority to legislate over federal enclaves and territories.
Rather, Congress enacted the FTCA pursuant to its power under
U.S. Const. art. 1, § 8, to pay debts, and the inherent power of
the sovereign to attach conditions to its consent to be sued.
See generally 1 Lester S. Jayson & Robert C. Longstreth,
Handling Federal Tort Claims § 2.14 (2018) (citing United States
v. Sherwood, 312 U.S. 584, 586 (1941) (“The United States, as
sovereign, is immune from suit save as it consents to be sued,
and the terms of its consent to be sued in any court define that
court’s jurisdiction to entertain the suit.” (internal citations
omitted))).
Nothing in the FTCA or the Constitution imposes a
territorial limit on that statute’s applicability, and the cases
Griffin cites are inapposite. 	The district judge should thus
deny Griffin’s motion (Doc. No. 17) challenging the territorial
scope of the FTCA.
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III. United States’s Motion to Dismiss (Doc. No. 2)
The United States moves to dismiss Griffin’s slander claims
for lack of jurisdiction, under Fed. R. Civ. P. 12(b)(1).1
A. 	Rule 12(b)(1) Standard
In ruling on a Rule 12(b)(1) motion, the court “credit[s]
the plaintiff’s well-pled factual allegations and draw[s] all
reasonable inferences in the plaintiff’s favor.” 	Merlonghi v.
United States, 620 F.3d 50, 54 (1st Cir. 2010). 	The court may
consider matters outside of the pleadings, such as affidavits,
without converting the motion into one for summary judgment.
See id.; Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir.
1996).
B. 	Westfall Act and Scope of Employment
The provision of the FTCA known as the Westfall Act, 28
U.S.C. § 2679(b)(1), generally makes an “action against the
1Griffin’s surreply (Doc. No. 9) filed in response to the
United States’s Rule 12(b)(1) motion, entitled “Answer to United
States Reply to Plaintiff’s Objection to Motion to Dismiss,”
asserts that the alleged slander implicated Griffin’s due
process rights, potentially giving rise to a Bivens claim
against Agent Hastbacka. 	See Doc. No. 9, at 9. 	Griffin has not
filed a motion to amend the complaint to add a Bivens claim
here. 	Such a motion would not be likely to succeed. 	The court
in Griffin v. Manchester Parole Office, No. 1:16-cv-438-JL
(D.N.H. Nov. 21, 2018) (ECF No. 117), concluded that no viable
Bivens claim arose from the same set of facts in that case.
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United States the exclusive remedy for money damages for injury
arising from the ‘negligent or wrongful act or omission’ of a
federal employee ‘acting within the scope of his office or
employment.’” 	Aversa, 99 F.3d at 1207 (citations omitted).
Thus, tort actions may no longer be maintained against
federal employees in their individual capacities where the
alleged tort was committed within the scope of employment.
This is true even where, as in the case of an action for
defamation, the doctrine of sovereign immunity precludes
governmental liability.”
Operation Rescue, 975 F. Supp. at 101 (citing United States v.
Smith, 499 U.S. 160, 165–67 (1991)). 	The Westfall Act
authorizes the Attorney General to certify that the employee was
acting within the scope of his employment. 	See 28 U.S.C.
§ 2679(d)(1). 	“Upon certification, any action . . . shall
proceed in the same manner as any action against the United
States . . . and shall be subject to the limitations and
exceptions applicable to those actions” under the FTCA. 	28
U.S.C. § 2679(d)(4).
The Attorney General’s certification is not binding on the
court, except as to the propriety of the removal. 	If the
Attorney General has issued that certification, a plaintiff
contesting the scope-of-employment certification bears the
burden of proving that the federal agent acted outside the scope
of his employment. 	Day v. Mass. Air Nat’l Guard, 167 F.3d 678,
685 (1st Cir. 1999); Aversa, 99 F.3d at 1209. 	That question is
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governed by state agency law. 	See Aversa, 99 F.3d at 1209.
Applying the appropriate standard in the context of this Rule
12(b)(1) motion, the court considers whether the allegations in
Griffin’s complaint, taken as true, and any undisputed evidence
submitted by the parties, establish that Agent Hastbacka’s
actions exceeded the scope of his employment, as defined by the
pertinent state’s law of agency. 	See Wuterich v. Murtha, 562
F.3d 375, 381 (D.C. Cir. 2009).
New Hampshire follows the principles enunciated in the
Restatement (Second) of Agency (1958). 	See Aversa, 99 F.3d at
1210; Pierson v. Hubbard, 147 N.H. 760, 766, 802 A.2d 1162, 1167
(2002).
[C]onduct falls within the scope of [an agent’s] employment
if: (1) it is of the kind she is employed to perform; (2)
it occurs substantially within the authorized time and
space limits; and (3) it is actuated, at least in part, by
a purpose to serve the employer.
Porter v. City of Manchester, 155 N.H. 149, 152, 921 A.2d 393,
397-98 (2007). 	“[C]onduct is not within the scope of employment
if it was ‘different in kind from that authorized, far beyond
the authorized time or space limits, or too little actuated by a
purpose to serve the master.’” 	Aversa, 99 F.3d at 1210
(applying New Hampshire law).
The evidence before this court filed in support of the Rule
12(b)(1) motion includes a declaration of Agent Hastbacka, which
the United States has incorporated by reference into its reply
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brief in this case. 	See Def.’s Reply to Pl.’s Obj. to Mot. to
Dismiss (Doc. No. 8) (citing Decl. of Special Agent Mark
Hastbacka in Support of Def.’s Surreply to Pl.’s Mot. for Summ.
J., Griffin v. Manchester Parole Office, No. 16-cv-438-JL
(D.N.H., filed Sept. 18, 2017) (ECF No. 80) (“Hastbacka
Decl.”)). 	Griffin has not disputed that Agent Hastbacka
interviewed Griffin at the New Hampshire State Prison,
concerning two letters Griffin had sent - one to a New Hampshire
Superior Court Judge and the other to the Hillsborough County
Attorney’s Office while he had been on parole, both of which
were perceived as threatening by the addressees. 	See Hastbacka
Decl. at ¶¶ 2-4. 	Griffin has not disputed that during that
interview, Agent Hastbacka asked Griffin about what Agent
Hastbacka called “militia” comments in the letters, and that
Griffin, in reply, suggested the named of another individual,
Michael Salafia, as having militia associations. 	Id. ¶ 5.
As a follow-up to his interview with Griffin, Agent
Hastbacka interviewed Salafia on June 13, 2016. 	Id. ¶ 6. 	It is
in that interview with Salafia that the alleged defamation
occurred; Agent Hastbacka is alleged to have wrongly informed
Salafia that Griffin’s letter implicated Salafia in a plot to
kill a state judge and prosecutor. 	See Compl., Doc. No. 1-1, at
1, 2.
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Griffin argues that because he alleges Agent Hastbacka’s
statements were made “intentionally, with malice aforethought in
retaliation for [Griffin’s] letter,” Agent Hastbacka was acting
outside the scope of his federal employment at the time he made
those statements and is therefore not entitled to have the
United States assume liability for him. 	See Griffin’s Obj. to
Mot. to Dismiss, Doc. No. 5 at 4. 	Under New Hampshire law,
however, an act’s intentional, wrongful, or even criminal nature
does not necessarily remove it from the scope of employment:
Although an employee’s intentionally tortious act was not
authorized, it may nonetheless have been within the scope
of employment if it was “incidental to authorized duties.”
According to New Hampshire cases deciding whether assaults
were within the scope of employment, the conduct must meet
three requirements in order to be considered incidental to
authorized duties: (1) the employer authorized or could
foresee that the employee would use a reasonable degree of
force as a means of carrying out an authorized duty; (2)
the employee used excessive force, although wrongly, as a
means of accomplishing an authorized duty; and (3) the
employee’s purpose was, at least in part, to carry out an
authorized duty. . . . 	See also Restatement [(Second) of
Agency] § 229 [1958] cmt. b (even though an act is of an
entirely different kind than that authorized, it may be
“incidental to an authorized act” if it is “within the
ultimate objective of the principal and an act which it is
not unlikely that such a servant might do”). 	If these
conditions are met, it follows that the employer is liable
for the employee’s negligent or willful use of excessive
force although the employer did not authorize it and even
forbade it.
Aversa, 99 F.3d at 1211 (citations omitted).
Here, Agent Hastbacka’s job involved investigating Griffin
as to the contents of Griffin’s letter and potential violations
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of federal laws. 	It could be anticipated by Agent Hastbacka’s
employer, the FBI, that the investigation would include contacts
with third parties identified by Griffin, and that in follow-up
interviews with such individuals, the agent might to some degree
loosely or inaccurately describe the letter’s contents or the
manner in which that person’s name came to the agent’s
attention. 	Cf. id. at 1212.
Agent Hastbacka’s declaration states that Agent Hastbacka
interviewed Salafia to investigate matters relating to Griffin’s
letters. 	See Hastbacka Decl. at ¶ 6. 	Griffin has neither
alleged facts nor offered any evidence that raises any dispute
as to why Agent Hastbacka met with Salafia. 	Even if the court
takes as true Griffin’s allegation that Agent Hastbacka’s
remarks to Salafia falsely and maliciously mischaracterized what
Griffin’s letter said, nothing before the court suggests that
Agent Hastbacka’s interview with Salafia served no legitimate
investigative purpose. 	Under the scope of employment principles
followed in New Hampshire, Agent Hastbacka’s alleged statements
about the letter during that interview, even if false and
defamatory, were within the scope of Agent Hastbacka’s
employment as a federal agent investigating violations of
federal law. 	Cf. Minnick v. Carlisle, 946 F. Supp. 2d 128, 132
(D.D.C. 2013) (“Courts routinely find that a federal employee’s
statements made during the course of government investigations
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fall within the scope of that employee’s duties, even when the
statements are alleged to be false or defamatory.” (citing
cases)) , aff’d, No. 13-5241, 2014 WL 590863, 2014 U.S. App.
LEXIS 1234 (D.C. Cir. Jan. 22, 2014) (per curiam).
The United States was properly substituted as the defendant
to Griffin’s claims concerning Agent Hastbacka. 	Griffin has not
carried his burden of challenging the validity of the Attorney
General’s scope of employment certification. 	Therefore, the
restrictions on FTCA claims apply to Griffin’s claims here.
C. 	Exhaustion and Sovereign Immunity
The FTCA mandates the dismissal of tort claims if the
plaintiff has failed to file any administrative claims with the
appropriate agency prior to commencing the action. 	See 28
U.S.C. § 2675(a). 	Griffin failed to file an administrative
claim prior to filing this action. 	Furthermore, the FTCA
preserves the government’s sovereign immunity with respect to
slander claims. 	See 28 U.S.C. § 2680(h). 	Therefore, the
district judge should grant the United States’ motion (to
dismiss this case (Doc. No. 2) because Griffin failed to exhaust
his administrative remedies, and the United States is immune
from suit on the slander claims.
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IV. 	Motion to Return Passport (Doc. No. 7)
Griffin has moved this court to order defendant to return
his passport. 	Griffin claims that the seizure of his passport
was undertaken in retaliation for Griffin’s exercise of his
First Amendment rights by filing this lawsuit, and that the
seizure violated Griffin’s Fourth Amendment rights. 	Griffin’s
motion is in the nature of a request for an injunction, based on
claims of violations of Griffin’s First and Fourth Amendment
rights, that have not been previously asserted in this case.
A. 	Preliminary Injunction Standard
“‘A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that
an injunction is in the public interest.’” Glossip v. Gross, 135
S. Ct. 2726, 2736 (2015) (citation omitted). 	Irreparable harm
and the likelihood of success weigh most heavily in the
analysis. 	Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,
22 (2008); Voice of the Arab World, Inc. v. MDTV Med. News Now,
Inc., 645 F.3d 26, 32 (1st Cir. 2011). 	The burden of proof is
on the movant. 	See Esso Std. Oil Co. v. Monroig–Zayas, 445 F.3d
13, 18 (1st Cir. 2006).
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B. 	Irreparable Harm
“Irreparable harm most often exists where a party has no
adequate remedy at law.” 	Charlesbank Equity Fund II, Ltd.
P’ship v. Blinds To Go, Inc., 370 F.3d 151, 162 (1st Cir. 2004).
“A finding of irreparable harm must be grounded on something
more than conjecture, surmise, or a party’s unsubstantiated
fears of what the future may have in store.” 	Id.
A passport may serve as a form of identification and as
authorization to travel abroad. 	Even if his passport were
returned, Griffin could not presently travel outside of the
prison, let alone outside of the United States, as he is
currently incarcerated. 	Griffin thus fails to show any risk of
irreparable harm relating to his present inability to travel
abroad in the absence of a passport.
Griffin contends that he needed the form of identification
provided by his passport when he was in the Division of
Community Corrections and had to obtain a job. 	Griffin,
however, was indicted for an escape from that placement in 2017
and he is currently in the prison’s general population. 	His
custody level does not presently allow him to obtain work
outside of the Department of Corrections. 	Griffin does not need
a passport at this time as a form of identification.
Griffin has thus failed to point to any irreparable harm
that might result if this court does not order the return of
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Griffin’s passport at this time. 	Accordingly, Griffin’s motion
for court-ordered return of his passport should be denied.
C. 	Destruction of Passport
Even if Griffin could show irreparable harm and the
requisite likelihood of success on his claims, the injunctive
relief he has requested would be unavailable. 	The evidence
indicates that Griffin’s passport was cancelled and destroyed by
the Department of State Bureau of Consular Affairs sometime
after December 22, 2017, approximately four months before
Griffin filed this lawsuit. 	See Decl. of Special Agent Andrew
H. Shea ¶ 4 (Doc. No. 10-1, at 2). 	As the destroyed passport
cannot be returned, cf. United States v. Schomaker, No. 97-CR-
131-JD, 2006 WL 1236841, at *2, 2006 U.S. Dist. LEXIS 28138, at
*6 (D.N.H. May 9, 2006), the district judge should deny
Griffin’s motion seeking its return (Doc. No. 7).
Conclusion
For the foregoing reasons, the district judge should deny
Griffin’s motions (Doc. Nos. 4, 7, 17), and grant the United
States’s motion to dismiss (Doc. No. 2). 	Any objections to this
Report and Recommendation must be filed within fourteen days of
receipt of this notice. 	See Fed. R. Civ. P. 72(b)(2). 	The
fourteen day period may be extended upon motion. 	Failure to
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file objections within the specified time waives the right to
appeal the district court’s order. 	See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
November 27, 2018
cc: 	John R. Griffin, Jr., pro se
Robert J. Rabuck, Esq.
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